EEOC and DOJ Release Guidance on "Illegal DEI"
March 20, 2025
On March 19, the Department of Justice (DOJ) and Equal Employment Opportunity Commission (EEOC) released two technical assistance documents addressing “unlawful DEI,” a 1-page summary, What to Do if You Experience Discrimination Related to DEI at Work, and a longer question and answer (Q&A) document, What You Should Know About DEI-Related Discrimination at Work.
In the documents, the agencies remind employees and employers that Title VII prohibits employment discrimination based on protected characteristics, such as race and sex, and that any decisions motivated, in whole or in part, by a protected characteristic are unlawful. The EEOC press release reiterates that “[t]he widespread adoption of DEI, however, does not change longstanding legal prohibitions against the use of race, sex, and other protected characteristics in employment” and the accompanying DOJ press release notes that “[u]nder Title VII, DEI initiatives, policies, programs, or practices may be unlawful if they involve an employer or other covered entity taking an employment action motivated—in whole or in part—by an employee’s or applicant’s race, sex, or another protected characteristic.” The EEOC’s technical assistance document also states that Title VII’s protections apply equally to all workers not just to minority groups. Finally, these official documents provide employees, who question their employers’ DEI practices, with instructions on how to file charges with the EEOC.
In the technical assistance document, the EEOC provides the following examples of DEI practices that could be considered to violate Title VII:
- “Balancing” a workforce based on protected characteristics was provided as an example of unlawful conduct;
- DEI training may give rise to a colorable hostile work environment claim if a reasonable person would consider it intimidating, hostile, or abusive;
- Opposition to DEI training may be a protected activity if the employee believes that the training violates Title VII; and,
- Employee resource groups (ERGs), or similar programs, may violate Title VII’s prohibition of segregating employees if they are not open to all.
Although the Supreme Court has not yet ruled on whether an “operational need” for diversity can justify voluntary affirmative action efforts under Title VII, the EEOC is taking the position that a company’s “diversity interest” is not a bona fide occupational qualification (BFOQ) justifying decisions based on protected characteristics.
Should you have any questions regarding these or other developments, please contact your FortneyScott attorney. For additional information, be sure to visit FortneyScott’s website and the new Resource Page on Compliance with Trump Administration Changes, including our prior Webinars and Podcasts.
During this webinar, FortneyScott's experienced practitioners will: Catalogue of the Administration’s activities focused on Higher Education; Trace the trends across agencies; Discuss expanded use of Title VI; and, Provide practical guidance for all employers.
On March 24, 2025, the U.S. Department of Labor (DOL) announced Catherine Eschbach as the new Director of the Office of Federal Contract Compliance Programs (OFCCP). In an email to OFCCP staff, Director Eschbach announced that under her leadership, all reform options are on the table and “most of what OFCCP has been doing is out of step, if not flat out contradictory to our country’s laws.” Her email went further to outline “OFCCP’s transition to its new scope of mission”: Verifying that federal contractors have wound down their affirmative action efforts 91 days after President Trump’s EO 14173 rescinded EO 11246. Examining federal contractors’ prior submissions to determine whether there are any indications of discrimination and whether OFCCP should undertake additional investigations. Advising the Secretary of Labor of measures to deter DEI as required by Section 4 of EO 14173. Determining statutory authority for Section 503 and VEVRAA and whether they should be housed elsewhere in Labor Department. “Rightsizing” the staff and geographic footprint of agency. Federal contractors should pay particular attention to the last bullet above. The new Director indicates that OFCCP will review prior submissions from closed audits to review for illegal DEI. If you receive any communication from OFCCP, or other federal agencies, with regard to past submissions or requesting additional information from closed audits, please contact your FortneyScott attorney immediately With this transition of enforcement for OFCCP, federal contractors need to take the necessary action and steps to ensure they understand and comply with the new obligations as outlined in EO 14173 and above. FortneyScott is assisting many of its clients in these matters. Please reach out to your FortneyScott attorney should you have any questions.
Trump Administration’s Focus on Higher Education
There were several important developments impacting federal contractors’ obligations on Friday, March 14. President Trump issued a new Executive Order eliminating federal contractor minimum wage, apprenticeship and Project Labor Agreement obligations imposed by President Biden’s Executive Orders. Additionally, an appellate court stayed the nationwide injunction on the new Certification of compliance with discrimination laws related to “illegal DEI,” which now permits the Certification obligations to be included in federal contracts. The Rescinded Executive Orders President Trump rescinded EO 14026, Increasing the Minimum Wage for Federal Contractors. This now rescinded EO applied to new or renewed federal contracts in 2022 and established an annual increase of the minimum wage for workers working on federal contracts with the minimum wage increasing to $17.75 beginning January 1, 2025. Effective immediately, federal contractors should use the rate provided in a Wage Determination, and will no longer be required to increase the hourly wage rate in order to meet the federal contractor minimum wage (this applies to both Service Contract Act and Davis-Bacon Act contracts). With regard to Davis-Bacon covered contracts, the apprenticeship obligations also were ended, as EO 14119, Scaling and Expanding the Use of Registered Apprenticeships in Industries and the Federal Government and Promoting Labor-Management Forums was rescinded. This Biden EO directed federal agencies to prioritize federal contractors and grantees who participated in registered apprenticeship programs when making award and funding decisions. Despite this EO being rescinded, we still anticipate the Trump Administration and Congress are supportive of future apprenticeship programs based on the bi-partisan support for these programs during the Secretary of Labor's confirmation hearings. Another Davis-Bacon related Executive Order rescinded focused on Project Labor Agreements (PLAs) -- EO 14126, Investing in America and Investing in American Workers, which favored companies that participated in registered apprenticeship programs and offered equitable compensation practices. Under the now rescinded EO, federal agencies were to favor grant applicants that have PLAs or support voluntary union recognition. Additionally, if applicants offered benefits such as childcare and paid leave, then that would give the applicant greater weight when being considered for funding. The Reinstitution of Compliance Certification The U.S. Court of Appeals for the Fourth Circuit granted the government's request to stay the nationwide preliminary injunction issued by the Maryland district court on March 6 relating to obligations of Federal contractors and grant recipients to certify compliance with the new prohibition on “illegal DEI.” We previously reported on the nationwide injunction, here . As a result of the Fourth Circuit stay, federal agencies now can renew efforts to require Federal contractors and grant recipients to certify compliance, subject to potential liabilities under the False Claims Act. In the future, the Fourth Circuit will address whether the certification obligations are lawful. In light of this ruling, it is important that federal contractors and grantees continue their efforts in ensuring there is no "illegal DEI."
In this content-packed webinar, our experienced practitioners address: The latest developments relating to Executive Order 14173’s new restrictions on “illegal Diversity, Equity and Inclusion (DEI),” and updates on related judicial developments; Practical lessons learned in evaluating whether DEI programs comply with EO 14173; The EEOC’s focus on protecting Americans from discrimination and investigating DEI practices at law firms; and, New initiatives by federal agencies to investigate antisemitism at higher ed institutions.
Filter Out the Noise – What Employers Need to Know About the Trump Administration Changes
During this webinar, FortneyScott's experienced practitioners will: Catalogue of the Administration’s activities focused on Higher Education; Trace the trends across agencies; Discuss expanded use of Title VI; and, Provide practical guidance for all employers.
On March 24, 2025, the U.S. Department of Labor (DOL) announced Catherine Eschbach as the new Director of the Office of Federal Contract Compliance Programs (OFCCP). In an email to OFCCP staff, Director Eschbach announced that under her leadership, all reform options are on the table and “most of what OFCCP has been doing is out of step, if not flat out contradictory to our country’s laws.” Her email went further to outline “OFCCP’s transition to its new scope of mission”: Verifying that federal contractors have wound down their affirmative action efforts 91 days after President Trump’s EO 14173 rescinded EO 11246. Examining federal contractors’ prior submissions to determine whether there are any indications of discrimination and whether OFCCP should undertake additional investigations. Advising the Secretary of Labor of measures to deter DEI as required by Section 4 of EO 14173. Determining statutory authority for Section 503 and VEVRAA and whether they should be housed elsewhere in Labor Department. “Rightsizing” the staff and geographic footprint of agency. Federal contractors should pay particular attention to the last bullet above. The new Director indicates that OFCCP will review prior submissions from closed audits to review for illegal DEI. If you receive any communication from OFCCP, or other federal agencies, with regard to past submissions or requesting additional information from closed audits, please contact your FortneyScott attorney immediately With this transition of enforcement for OFCCP, federal contractors need to take the necessary action and steps to ensure they understand and comply with the new obligations as outlined in EO 14173 and above. FortneyScott is assisting many of its clients in these matters. Please reach out to your FortneyScott attorney should you have any questions.
Trump Administration’s Focus on Higher Education
There were several important developments impacting federal contractors’ obligations on Friday, March 14. President Trump issued a new Executive Order eliminating federal contractor minimum wage, apprenticeship and Project Labor Agreement obligations imposed by President Biden’s Executive Orders. Additionally, an appellate court stayed the nationwide injunction on the new Certification of compliance with discrimination laws related to “illegal DEI,” which now permits the Certification obligations to be included in federal contracts. The Rescinded Executive Orders President Trump rescinded EO 14026, Increasing the Minimum Wage for Federal Contractors. This now rescinded EO applied to new or renewed federal contracts in 2022 and established an annual increase of the minimum wage for workers working on federal contracts with the minimum wage increasing to $17.75 beginning January 1, 2025. Effective immediately, federal contractors should use the rate provided in a Wage Determination, and will no longer be required to increase the hourly wage rate in order to meet the federal contractor minimum wage (this applies to both Service Contract Act and Davis-Bacon Act contracts). With regard to Davis-Bacon covered contracts, the apprenticeship obligations also were ended, as EO 14119, Scaling and Expanding the Use of Registered Apprenticeships in Industries and the Federal Government and Promoting Labor-Management Forums was rescinded. This Biden EO directed federal agencies to prioritize federal contractors and grantees who participated in registered apprenticeship programs when making award and funding decisions. Despite this EO being rescinded, we still anticipate the Trump Administration and Congress are supportive of future apprenticeship programs based on the bi-partisan support for these programs during the Secretary of Labor's confirmation hearings. Another Davis-Bacon related Executive Order rescinded focused on Project Labor Agreements (PLAs) -- EO 14126, Investing in America and Investing in American Workers, which favored companies that participated in registered apprenticeship programs and offered equitable compensation practices. Under the now rescinded EO, federal agencies were to favor grant applicants that have PLAs or support voluntary union recognition. Additionally, if applicants offered benefits such as childcare and paid leave, then that would give the applicant greater weight when being considered for funding. The Reinstitution of Compliance Certification The U.S. Court of Appeals for the Fourth Circuit granted the government's request to stay the nationwide preliminary injunction issued by the Maryland district court on March 6 relating to obligations of Federal contractors and grant recipients to certify compliance with the new prohibition on “illegal DEI.” We previously reported on the nationwide injunction, here . As a result of the Fourth Circuit stay, federal agencies now can renew efforts to require Federal contractors and grant recipients to certify compliance, subject to potential liabilities under the False Claims Act. In the future, the Fourth Circuit will address whether the certification obligations are lawful. In light of this ruling, it is important that federal contractors and grantees continue their efforts in ensuring there is no "illegal DEI."
In this content-packed webinar, our experienced practitioners address: The latest developments relating to Executive Order 14173’s new restrictions on “illegal Diversity, Equity and Inclusion (DEI),” and updates on related judicial developments; Practical lessons learned in evaluating whether DEI programs comply with EO 14173; The EEOC’s focus on protecting Americans from discrimination and investigating DEI practices at law firms; and, New initiatives by federal agencies to investigate antisemitism at higher ed institutions.
Filter Out the Noise – What Employers Need to Know About the Trump Administration Changes
In this webinar, FortneyScott’s highly experienced attorneys, including David Fortney, Leslie Silverman (former Vice Chair of EEOC), and Nita Beecher, will discuss the practical implications for employers due to the latest changes at EEOC, including: Impact of President Trump’s unprecedented personnel actions resulting in a lack of a quorum; Response of Acting Chair Andrea Lucas to President Trump’s Executive Orders; Likely focus of the EEOC under the Trump Administration; and, Impact on EEOC of the Trump Administration’s efforts to secure reversal of the Supreme Court’s seminal Humphrey’s Estate decision.
On February 21, Judge Adam B. Abelson in the District Court for Maryland issued a preliminary injunction enjoining defendants (other than the President) from acting under parts of EO 14173. Specifically, the defendants are ordered not to: “pause, freeze, impede, block, cancel, or terminate any awards, contracts or obligations . . . or change the terms of any Current Obligation,” make federal contractors certify that they do not engage in DEI practices that violate anti-discrimination laws, or bring any enforcement actions (including FCA claims) based on the EO’s certification requirement. The government is still permitted to make lists of organizations to investigate. We will keep you apprised of any further developments.
There have been significant changes at the Equal Employment Opportunity Commission (EEOC) during President Trump’s first four weeks in office, as part of the widespread changes at federal agencies. To learn the latest EEOC developments, join FortneyScott’s next webinar on February 25, from 12 noon to 1:00pm (Eastern) as the latest in FortneyScott’s ongoing series of webinar s and podcasts that provide employers with the latest information on the key Trump Administration changes. Register here . In this webinar , FortneyScott’s highly experienced attorneys, including David Fortney, Leslie Silverman (former Vice Chair of EEOC), and Nita Beecher, will discuss the practical implications for employers due to the latest changes at EEOC, including: Impact of President Trump’s unprecedented personnel actions resulting in a lack of a quorum; Response of Acting Chair Andrea Lucas to President Trump’s Executive Orders; Likely focus of the EEOC under the Trump Administration; and, Impact on EEOC of the Trump Administration’s efforts to secure reversal of the Supreme Court’s seminal Humphrey’s Estate decision. Click here to register for this important and timely free webinar on Tuesday, February 25, 2025, from 12 noon to 1:00pm (Eastern).
The False Claims Act and "Illegal DEI": What Federal Contractors Need to Know. Join Nita Beecher, Sarah Mugmon, and Adriana Joens to discuss the following questions.
